D.E (infant) v Minister for Justice and Equality (No.3)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 26 June 2017 |
| Neutral Citation | [2017] IEHC 409 |
| Docket Number | [2016 No. 678 J.R.] |
| Court | High Court |
| Date | 26 June 2017 |
[2017] IEHC 409
THE HIGH COURT
JUDICIAL REVIEW
Humphreys J.
[2016 No. 678 J.R.]
AND
(No. 3)
Asylum, Immigration & Nationality – Revocation of deportation order – Interim stay – Judicial review – S. 3(11) of Immigration Act, 1999
Facts: The applicant/minor filed the third judicial review application through his mother in relation to the revocation of deportation order made against the applicant/minor. The mother of the applicant had earlier filed two unsuccessful judicial review applications and she was now seeking a stay on the applicant's deportation pending an intended application for leave to appeal to the Supreme Court. The mother of the applicant objected to the applicant's deportation on the ground that since he was suffering from life-threatening disease, namely sickle cell anaemia requiring blood transfusion, he would be subjected to reduced healthcare facilities in the country of origin.
Mr. Justice Richard Humphreys refused to grant a stay to the applicant. The Court held that if it was to grant an injunction, it would prevent the execution of the perfectly valid deportation order. The Court noted that it had jurisdiction to restrain the deportation of the applicant only in exceptional circumstances such as the existence of new facts and grim situations. The Court found that none of those circumstances were present in the underlying case. The Court held that there was ample evidence that the desired medical treatment was available in the country of origin. The Court noted that being born in Ireland would not ipso facto give an entitlement to the applicant to stay in the State. The Court noted that the availability of secure blood for blood transfusion of the applicant in Ireland was not a ground to claim legal entitlement for being in the State as there was no evidence that the quality of Irish-sourced blood was better than the blood sourced from the country of origin.
The applicant's mother arrived in Ireland on 23rd January, 2009, while pregnant. The applicant was born in the State on 26th March, 2009. A deportation order was made against him on 1st July, 2011.
A first judicial review application [2011 No. 637 J.R.] was brought against the deportation order and dismissed by Cross J. at leave stage ( D.O.E. v. Minister for Justice and Equality [2012] IEHC 100 (Unreported, High Court, 1st March, 2012)) on the basis that there were no substantial grounds for the challenge due to a lack of evidence of there being exceptional circumstances which would permit the applicant to remain in the State to avail of medical treatment. The Minister was held to have given due consideration to the medical situation and it was held that there was no deficiency in the consideration of art.3 of the ECHR.
Between 14th June, 2012, and 22nd July, 2014, the applicant's mother (and by necessary extension the applicant, albeit that he was not personally responsible) evaded the Garda National Immigration Bureau.
In the meantime an application to revoke the deportation order had been made, which was refused on 8th July, 2014. A second set of judicial review proceedings [2014 No. 526 J.R.] was brought against that refusal.
On 24th November, 2014, Mac Eochaidh J. struck out the second judicial review application on the grounds of mootness because of a second s. 3(11) application.
On 29th July, 2016, the second s. 3(11) refusal was issued. That gave rise to the present proceedings, the third judicial review in the matter.
On 23rd August, 2016, Murphy J. granted an interim injunction restraining the deportation of the applicant up to 10th October, 2016. This order was perfected on 24th August, 2016.
On 2nd November, 2016, I granted an order extending the injunction pending determination of the application for leave to seek judicial review. That order was perfected on 8th November, 2016.
In a judgment dated 14th November, 2016 ( D.E. v. Minister for Justice and Equality (No. 1) [2016] IEHC 650) I refused leave to seek judicial review. As of the date of hearing of the present application for a stay, on 29th May, 2017, that order had not been perfected.
On 9th May, 2017 ( D.E. v. Minister for Justice and Equality (No. 2) [2017] IEHC 276) I refused leave to appeal to the Court of Appeal against the leave refusal decision. Again, as of the hearing date, that order had not been perfected.
On 15th May, 2017, I granted costs to the respondents (the leave to appeal application having been made on notice) and continued the injunction until 29th May, 2017. That order was perfected on 17th May, 2017.
Mr. Michael Conlon S.C. (with Mr. Paul O'Shea B.L.), in a measured and skilful submission on behalf of the applicant, is applying now for an injunction or stay pending an intended application for leave to appeal to the Supreme Court. While to some extent he may have been hindered in appealing to the Supreme Court due to the absence of a perfected order, he has not shown any efforts to actually obtain the order in the 6 and a half month period since 14th November, 2016. Nor at any stage has he prepared a draft notice of application for leave to appeal.
In written submissions the applicant suggested that the Supreme Court determination in P.I. v. Governor of Cloverhill Prison [2016] IESCDET 145 sets out a test for injunctions or stays pending appeal as opposed to a pending hearing, but I fully considered this in Y.Y. v. Minister for Justice and Equality (No. 3) (Unreported, High Court, 24th March, 2017) in which I held that the test in Okunade v. Minister for Justice, Equality and Law Reform [2012] 3 I.R. 152 applies (see also C.C. v. Minister for Justice and Equality [2016] IESC 48).
As noted above, the deportation order in this case was made on 1st July, 2011. Judicial review proceedings were brought against that order and dismissed. The applicant subsequently made an application for revocation of the order under s. 3(11) of the Immigration Act, 1999, which was rejected. Judicial review proceedings against that rejection were struck out. He then made a further s. 3(11) application which has led to the present, third set of judicial review proceedings.
A threshold question arises as to whether in a judicial review relating to revocation of a deportation order, the court has jurisdiction to restrain the enforcement of the original order, in circumstances where it is either unchallenged or unsuccessfully challenged (and therefore now unchallengeable).
Ms. Nuala Butler S.C. (with Ms. Fiona O'Sullivan B.L.) for the respondents draws attention to the fact that this question regarding jurisdiction is currently pending before the Supreme Court in the P.I. case, having regard to the fifth issue on which leave to appeal was granted, namely ‘ what is the jurisdiction of any court to grant a stay or an injunction to restrain the deportation of an individual pending appeal when the underlying deportation order has never been challenged’ (at s. 5 of the determination). She preferred to leave the jurisdiction question to the P.I. case but submitted that an injunction preventing the operation of a valid deportation order ought not be granted as no new material has been advanced by the applicant that was not known or considered by the Minister at the time of the making of the deportation order, and that this is not an exceptional case which would warrant the granting of an injunction.
In considering this question it makes little difference whether an original underlying deportation order has not been challenged or has been unsuccessfully challenged, because the same outcome of an unchallengeable order results.
It seems to me that this is probably ultimately a semantic question. There is no operational difference between saying that there is no jurisdiction to grant such an injunction unless circumstance X applies, or saying that there is a jurisdiction but it should only be exercised in circumstance X.
It is noteworthy that the Court of Appeal in the P.I. case took the view that it did not have such jurisdiction. As set out in s. 3 of the Supreme Court determination, ‘ following the hearing in the Court of Appeal, an application was made to the Court of Appeal on the 22nd November, 2016 for a stay on the deportation order pending the determination of an application for leave to appeal to the Supreme Court but the application was refused on the basis that the court could not grant a stay or an injunction to restrain the execution of a valid deportation order’.
The concept that the court should not (except in exceptional circumstances) restrain a valid deportation order in proceedings other than those challenging the order itself follows from the important Supreme Court decision in L.C. v. Minister for Justice [2007] 2 I.R. 133 [2006] 7 JIC 1001 ( per McCracken J. (Kearns and Macken JJ. concurring)), which dealt with an application for an injunction to restrain deportation in a case where an application to revoke the deportation order had been made and rejected, and a challenge to that rejection had also been rejected by the High Court and was under appeal to the Supreme Court (a situation with parallels to the present case).
As I noted in K.R.A. v. Minister for Justice and Equality (No. 4) [2016] IEHC 703, at para. 41, the Supreme Court held in L.C. that: ‘ If the court were to grant an injunction such as is being sought by the appellant, the effect would be to...
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